Citation Nr: 0907287
Decision Date: 02/26/09 Archive Date: 03/05/09
DOCKET NO. 05-01 322 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to a total disability evaluation based on
individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
E. Woodward Deutsch, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1988 to May
1991.
This matter comes before the Board of Veterans' Appeals
(Board) from a July 2005 rating decision of a Department of
Veterans Affairs (VA) Regional Office (RO) that denied
entitlement to a TDIU rating. In June 2007, the Board
remanded the claim for further development.
FINDINGS OF FACT
The Veteran's right eye disabilities, headaches, and
adjustment disorder with depressed mood have a combined
disability rating of 70 percent. His service-connected
disabilities are not shown to be of such severity so as to
preclude substantially gainful employment.
CONCLUSION OF LAW
The criteria for the assignment of a TDIU rating have not
been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§
3.340, 3.341, 4.16 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In order to establish entitlement to TDIU due to
service-connected disabilities, there must be impairment so
severe that it is impossible for the average person to follow
a substantially gainful occupation. 38 U.S.C.A. § 1155 (West
2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2008). In reaching
such a determination, the central inquiry is whether the
Veteran's service connected disabilities alone are of
sufficient severity to produce unemployability. Hatlestad v.
Brown, 5 Vet. App. 524 (1993). Consideration may be given to
the Veteran's level of education, special training, and
previous work experience in arriving at a conclusion, but not
to his age or to the impairment caused by nonservice-
connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19
(2006); Van Hoose v. Brown, 4 Vet. App. 361 (1993).
The regulatory scheme for a TDIU provides both objective and
subjective criteria. Hatlestad v. Brown, 5 Vet. App. 524
(1993); VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317
(1992). The objective criteria, set forth at 38 C.F.R.
§ 3.340(a)(2) (2008), provide for a total rating when there
is a single disability or a combination of disabilities that
result in a 100 percent schedular evaluation. Subjective
criteria, set forth at 38 C.F.R. § 4.16(a) (2008), provide
for a TDIU when, due to service-connected disability, a
Veteran is unable to secure or follow a substantially gainful
occupation, and has a single disability rated 60 percent or
more, or at least one disability rated 40 percent or more
with additional disability sufficient to bring the combined
evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341,
4.16(a). In exceptional circumstances, where the Veteran
does not meet the aforementioned percentage requirements, a
total rating may nonetheless be assigned upon a showing that
the individual is unable to obtain or retain substantially
gainful employment. 38 C.F.R. § 4.16(b) (2008).
Here, the Veteran is service-connected for separate eye
disabilities (sarcoidosis with right eye iritis and glaucoma,
and post-operative enucleation, right eye iritis due to
sacrcoidosis and glaucoma), each rated as 40 percent
disabling. Additionally, the Veteran is in receipt of 30
percent disability ratings for headaches and an adjustment
disorder with depressed mood, both secondary to his service-
connected right eye sarcoidosis. The combined disability
rating is 70 percent. The Veteran thus meets the percentage
criteria laid out in 38 C.F.R. § 4.16(a). The remaining
question before the Board therefore is whether the Veteran is
unemployable by reason of his service-connected disabilities
alone, taking into account his educational and occupational
background.
A review of the record reveals that the Veteran completed
four years of high school and two years of college.
Following his discharge from service, he worked as a police
dispatcher, a casino dealer, a pizza delivery driver, a CAD
technician for a state highway department, and a VA Food
Services employee. He has been unemployed since August 2004
except for a brief period in March 2005 when he underwent
vocational rehabilitation counseling at a VA Employee
Development Services and took part in a Compensated Work
Therapy (CWT) program. VA records from that period indicate
that the Veteran's original service-connected right eye
disability (sarcoidosis with right eye iritis and glaucoma)
interfered with his ability to participate in the CWT
program. He underwent right eye encucleation surgery at a VA
Medical Center in January 2006 and subsequently was granted a
separate disability rating for post-operative enucleation,
right eye iritis due to sarcoidosis and glaucoma.
Additionally, VA medical records dated from February 2005 to
January 2006 and VA examinations conducted in November and
December 2005 reflect complaints and treatment for headaches
and psychiatric symptoms associated with right eye problems.
The relevant evidence of record further shows that from
September 2003 to December 2005, the Veteran was treated
periodically at a VA Medical Center for complaints of
depression associated with alcohol and cocaine abuse. It was
noted that he had a history of drug and alcohol addiction
dating back to 1991.
Pursuant to the Board's June 2007 remand, the Veteran was
afforded separate VA eye, psychiatric, and neurological
examinations to assess the impact of his service-connected
disabilities on his employment.
At the June 2008 VA eye examination, the Veteran was found to
have uncorrected vision of 20/25 in his left eye and no
vision in his right eye, post-operative enucleation. It was
noted that he continued to experience pain in the area
surrounding the right eye where the detachment surgery had
occurred. Based upon the clinical examination and a review
of the claims folder, the VA examiner determined that while
the Veteran had limited visual acuity and visual field, his
eye disabilities would not hinder his employability except
for positions requiring depth perception.
At the June 2008 VA psychiatric examination, the Veteran
reported that he suffered from chronic depression that was
moderate to severe in nature and arose out of his concern
about being "disfigured" after his right eye enucleation
surgery, as well as the fact that he did not "go out very
much anymore." The Veteran complained of sleeping
disturbances and a diminished libido in connection with his
depression. He stated that he drank beer "every three to
five days." Additionally, he stated that he had regularly
used cocaine and marijuana until February of that year, but
denied any recent illegal drug use. The Veteran also denied
experiencing any homicidal or suicidal ideations or
anhedonia. Nor did he report any history of delusions or
hallucinations. In terms of employment and social history,
the Veteran reported that he had not worked since 2004
because, in his words, "I don't get along with people very
well. People are rude." He stated that he spent most of
his time watching television and surfing the Internet. The
Veteran acknowledged that he had been previously married and
had three children, but stated that he currently lived with
his aunt and did not visit with anyone or go anywhere.
Mental status examination revealed a dysphoric mood
consistent with moderate symptoms of depression, which, in
the VA examiner's opinion, had persisted for a number of
years. Based upon the examination and a review of the claims
folder, the VA examiner assigned the Veteran a Global
Assessment and Functioning (GAF) score of 50, which reflected
serious psychiatric symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) or any serious
impairment in social, occupational, or school functioning
(e.g., no friends, unable to keep a job). Diagnostic and
Statistic Manual of Mental Disorders, Fourth Edition (DSM-
IV). Additionally, the VA examiner acknowledged that the
Veteran's VA treatment records reflected other psychiatric
diagnoses besides depression, including post-traumatic stress
disorder, substance induced mood disorder, and polysubstance
dependence. However, the VA examiner stated that he did not
see sufficient clinical evidence to warrant any psychiatric
diagnoses other than adjustment disorder. Most
significantly, the VA examiner expressly stated that the
Veteran's psychiatric problems alone did not preclude
employment or interfere with his daily living activities.
At the June 2008 VA neurological examination, the Veteran
reported that his headache condition had its onset in the
early 1990s as a result of his right eye iritis and glaucoma.
He complained of chronic pain in the area surrounding his
right eye and in the back of his head. While the Veteran
reported that his headaches had persisted despite his right
eye surgery in January 2006, he did not complain that they
had gotten worse. He described his headaches as productive
of sharp and pulsating pain roughly two or three times per
week, which could strike any time of the day or night. Each
headache lasted from 10 to 30 minutes and was accompanied by
nausea and vomiting. It was noted that while the Veteran
treated his headaches with Ibuprofen, he could not function
while they were taking place and had to lie prostrate in bed.
Additionally, the Veteran stated that he used to take
narcotics for his headaches, but could no longer do so on
account of his status as a recovering addict. Clinical
examination revealed a lack of extraocular movements in the
right eye, but was otherwise negative for any physical or
neurological defects affecting the eye. The Veteran's head
was noted to be normocephalic with no signs of trauma. On
the basis of the Veteran's statements and the clinical
examination, the VA examiner diagnosed him as having
"headaches with migraine-like characteristics that are
secondary to an ophthalmological problem of the right eye."
The examiner noted that "it would be very difficult" for
the Veteran to work because of his service-connected
headaches, which left him prostrate two or three times per
week. Significantly, however, that examiner did not indicate
that the Veteran's headaches, or any of his other service-
connected disabilities, rendered him unemployable.
After a thorough review of the record, the Board that the
competent evidence of record does not show that the Veteran's
service-connected right eye disabilities, adjustment
disorder, and headaches preclude employment. The Board
recognizes that the Veteran has not worked for several years,
and that VA records dated in March 2005 indicate that his
right eye problems interfered with his ability to participate
in the CWT program. Nevertheless, the Board finds that the
subsequent opinion offered by the June 2008 VA eye examiner,
indicating that the Veteran's right eye disabilities would
not interfere with his employability except for positions
requiring depth perception, constitutes competent evidence
that those right eye disabilities have not left him unable to
work.
Additionally, the Board notes that the VA mental status
examiner found that the Veteran's service-connected
adjustment disorder with depressed mood, while manifested by
serious symptoms, would not in itself preclude employment or
interfere with his daily living activities.
Further, the Board acknowledges that the VA neurological
examiner opined that the prostrating nature of the Veteran's
service-connected headaches would "make it very difficult"
for him to work. However, that examiner did not indicate
that the Veteran's headaches constituted a complete bar to
employment. Nor did the VA neurological examination reveal
complaints or clinical findings of a worsening of the
Veteran's headaches, which have been rated 30 percent
disabling since November 2004. Moreover, there is no
competent clinical evidence of record that the Veteran's
headaches, or any of his other service-connected
disabilities, alone or combined, have rendered him totally
disabled. For these reasons, the Board concludes that the
competent evidence of record weighs against a finding that
the Veteran is unable to obtain or retain any form of
substantially gainful employment due solely to the severity
of his service-connected right eye disabilities, headaches,
and adjustment disorder with depressed mood.
The Board recognizes that the Veteran has problems with his
service-connected disabilities and that those disabilities
make it difficult for him to work and disqualify him from
certain jobs, such as those requiring depth perception. All
this, however, is reflected in the current combined 70
percent rating. Van Hoose v. Brown, 4 Vet. App. 361 (1993).
Moreover, while his service-connected disabilities may cause
some economic inadaptability, this also is taken into account
in the assigned evaluation.
The Board is sympathetic to the Veteran's contentions that he
is no longer able to work due to his service-connected
disabilities. However, there is no indication that these
disabilities standing alone, when considered in association
with his educational attainment and occupational background,
render him unable to secure or follow a substantially gainful
occupation. Rather, the evidence in this case indicates that
while the Veteran may have a difficult time obtaining
employment, he is not precluded from jobs that do not require
depth perception. The Board therefore concludes that this
case presents no unusual or exceptional circumstances that
would justify a referral of the total rating claim to the
Director of the VA Compensation and Pension Service for
extra-schedular consideration. There is no evidence of
anything out of the ordinary, or not average, in the
Veteran's situation. His service-connected conditions may
affect his abilities to some degree, but there is no evidence
that he is unable to perform any type of substantially
gainful employment specifically as a result of these
conditions. The evidence does not show that the Veteran's
service-connected disabilities alone preclude his obtaining
or maintaining employment. The Veteran already receives a 70
percent combined disability rating, which reflects the
impairment of his employability occasioned by his service-
connected eye disabilities, adjustment disorder with
depressed mood, and headaches.
In the absence of any evidence of unusual or exceptional
circumstances beyond that which is contemplated by the
assigned schedular disability evaluations, the Board finds
that the preponderance of the evidence is against the claim
and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002);
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Duties to Notify and Assist the Appellant
Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.159
(2007). The notice must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; and
(3) inform the claimant about the information and evidence
the claimant is expected to provide. Pelegrini v. Principi,
18 Vet. App. 112 (2004).
Here, the RO sent correspondence in September 2004 and May
2008, a rating decision in July 2005; a statement of the case
in January 2006, and a supplemental statement of the case in
July 2006. These documents discussed specific evidence, the
particular legal requirements applicable to the claims, the
evidence considered, the pertinent laws and regulations, and
the reasons for the decisions. VA made all efforts to notify
and to assist the appellant with regard to the evidence
obtained, the evidence needed, the responsibilities of the
parties in obtaining the evidence, and the general notice of
the need for any evidence in the appellant's possession. The
Board finds that any defect with regard to the timing or
content of the notice to the appellant is harmless because of
the thorough and informative notices provided throughout the
adjudication and because the appellant had a meaningful
opportunity to participate effectively in the processing of
the claims with an adjudication of the claims by the RO
subsequent to receipt of the required notice. There has been
no prejudice to the appellant, and any defect in the timing
or content of the notices has not affected the fairness of
the adjudication. See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006) (specifically declining to address harmless error
doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473
(2006). Thus, VA has satisfied its duty to notify the
appellant and had satisfied that duty prior to the final
adjudication in the November 2008 supplemental statement of
the case.
In addition, all relevant, identified, and available evidence
has been obtained, and VA has notified the appellant of any
evidence that could not be obtained. The appellant has not
referred to any additional, unobtained, relevant, available
evidence. VA has also obtained medical examinations in
relation to the claim. Thus, the Board finds that VA has
satisfied both the notice and duty to assist provisions of
the law.
ORDER
Entitlement to a total disability evaluation based on
individual unemployability is denied.
____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs